Gujarat High Court
Nareshbhai Kanubhai Shah vs State Of Gujarat on 13 July, 2021
Author: Biren Vaishnav
Bench: Vikram Nath, Biren Vaishnav
C/WPPIL/82/2021 ORDER DATED: 13/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 82 of 2021
With
R/WRIT PETITION (PIL) NO. 84 of 2021
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NARESHBHAI KANUBHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR.VISHAL J DAVE(6515) for the Applicant(s) No. 1
MS. HIRAL U MEHTA(7003) for the Applicant(s) No. 1
NIPUN SINGHVI(9653) for the Applicant(s) No. 1
for the Opponent(s) No. 2
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER WITH MS
AISHVARYA GUPTA, AGP for the Opponent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
VIKRAM NATH
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 13/07/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. Writ Petition (PIL) No. 82 of 2021 has been filed by Nareshbhai Kanubhai Shah, a social activist. Writ Petition (PIL) No. 84 of 2021 has been filed by Ajaykumar Babulal Vaghela working as a personal tuition teacher. Since both these Public Interest Litigations, filed by the respective petitioners raise a common grievance, they are heard together and disposed of by this common order. For the sake of brevity, prayers in Writ Petition (PIL) No. 82 of 2021 are quoted hereunder:
"12 (a) Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate Writ, order or direction to quash and set aside the circular/press release dated 22.06.21 issued by the Respondents to conduct the Class 10 th Page 1 of 7 Downloaded on : Wed Sep 08 13:07:05 IST 2021 C/WPPIL/82/2021 ORDER DATED: 13/07/2021 and 12th Board examinations in physical mode for repeater, private and compartment students scheduled to be held between 15.07.21 to 28.07.21 conducted by the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and further be pleased to direct the Respondents to cancel the Class 10th and 12th Board examinations in physical mode for repeater, private and compartment students scheduled to be held between 15.07.2021 to 28.07.21 conducted by the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and to direct the Respondents to constitute a committee to decide/declare Board results by formulating the formula of assessment of repeater, private and compartment students and to declare the results within a time limit or deadline and to promote the Students accordingly in light of Covid-19 pandemic;"
2. We have heard Shri Vishal J Dave, learned counsel for the petitioner in Writ Petition (PIL) No. 82 of 2021 and Mr. D.K. Trivedi, learned counsel for the petitioner in Writ Petition (PIL) No. 84 of 2021, Ms. Manisha L Shah, learned Government Pleader assisted by Ms. Aishvarya Gupta, learned AGP for the State respondents.
3. The cause espoused in these petitions by the petitioners is on behalf of the repeater, private and external students of the 10 th and 12th standards studying under the Gujarat State Education Board. They are aggrieved by a press note dated 22.06.2021 issued by the Gujarat Secondary and Higher Secondary Education Board notifying the examination schedule for physical examinations of the 10th and the 12th Board between 15th July 2021 to 28th July 2021.
4. Both the learned counsels for the petitioners have made common submissions which in brief are as under:
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(a) The press release dated 22.06.2021 for holding physical examinations for standard 10th and 12th is bad inasmuch as considering the present pandemic situation, the students ought to be given the option of appearing online.
(b) That the Gujarat Board, the Central Board of Secondary Education and Boards of other several states have cancelled the 10th and 12th Board examinations for regular students and given them the benefit of mass promotion. Denial of a similar benefit to the petitioners by uniformly applying the same principle violates the constitutional guarantee enshrined under Article 14 of the Constitution of India.
(c) Attention has been drawn by the learned counsels to the paper book filed by the petitioners to submit that there is a prediction of a third wave of Covid, the resurgence of which is likely to mostly affect children and young people. Keeping the well-being of the students therefore which form a homogenous class, the decision of conducting examinations by physical mode by the State for repeater, private and external students only whereas exempting the regular students from undertaking an examination not only violates Article 14 of the Constitution of India but also the right to life under Article 21 of the Constitution of India.
(d) Reliance is also placed on the interaction which the Honourable Prime Minister had with the students of the Central Board and the Press Information Bureau's release from the Prime Minister's Office which reflects the concern of the Prime Minister who chaired a review meeting pursuant to which the Central Board Page 3 of 7 Downloaded on : Wed Sep 08 13:07:05 IST 2021 C/WPPIL/82/2021 ORDER DATED: 13/07/2021 examinations were cancelled and the State followed suit.
(e) Reliance is also placed on a decision rendered by the Division Bench of the Karnataka High Court in the case of Sri S.V. Singre Gowda vs. The State of Karnataka and Others in Writ Petition No. 10035 of 2021 dated 05.07.2021.
5. Ms. Manisha L Shah, learned Government Pleader appearing for the State respondents made the following submissions:
(I) That the examination is to be conducted for three categories of students namely (i) repeater students - those who have failed after one or more attempts, (ii) isolated students - those who have passed the examination but want to clear one or more subjects for their better prospects and (iii) private students - those who have not regularly attended the school but appear as external students.
(ii) In support of her submission that the examination would not endanger or compromise with the students' health, she would rely on certain statistical data. She would submit that the number of students who are going to appear for examination of only one subject is 1,54,679 (for one day). 91,969 students are to appear for two subjects and 1,39,325 students are to appear for examination of three subjects. In all the 7 subjects only 35,667 students will appear.
(iii) Adequate arrangements have been made for the purpose of conducting the examination at 643 centers consisting of 2916 school buildings wherein 28,291 blocks will be utilised. A detailed Page 4 of 7 Downloaded on : Wed Sep 08 13:07:05 IST 2021 C/WPPIL/82/2021 ORDER DATED: 13/07/2021 SOP in respect of Covid protocol is to be followed for the examination and the same has been circulated to all Collectors, Superintendents of Police, District Education Officers and such other authorities. The Minister of Education through the medium of video conference has on 07.07.2021 held a meeting with the higher officials of the department including the Home Department, Revenue Department, Director General of Police, Collectors, Police Commissioners briefing the meeting of the guidelines and for ensuring smooth conduct of the examination.
6. Having considered the submissions made by the learned advocates for the respective parties, we do not deem it fit to entertain these petitions on the following grounds:
(I) The benefit of mass promotion by virtue of a policy decision of the State taken on 03.06.2021 for students of Class 10 and also the decision of the Central Board of Secondary Education to put off examinations for regular students of Class 10 and 12 and laying down a procedure of assessment was in context of a class of students who are regular students who have been attending the school otherwise except a brief intervention during the Covid.
Considering the objective of the policy it is apparent that the benefit has been given to such students considering their transparent academic record based on realistic periodic evaluation of academic performance of students by the school.
(II) The petitioners cannot compare themselves with students who in their academic pursuits have regularly undertaken the examinations and have successfully cleared the tests conducted by Page 5 of 7 Downloaded on : Wed Sep 08 13:07:05 IST 2021 C/WPPIL/82/2021 ORDER DATED: 13/07/2021 the school and reached a stage of being in the standards 10 and 12. The petitioners have by virtue of their classification as repeater students or private students either failed after one or more attempts or have not regularly attended the school. Clearly, therefore, there is no question of they being treated equally. The concept of Article 14 cannot be brought in for treating unequals as equals. The regular students have been assessed by the school from time to time and they have been imparted regular education either through offline or online mode but as far as the petitioners are concerned, there has been no mode of assessment. Therefore, it is pertinent that they be assessed, more particularly, considering that they are in Classes 10 and 12. Even otherwise, it is a settled law that discrimination is the essence of classification and that equality is violated if it rests on unreasonable basis. It is further observed that the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee and that those who are similarly circumstanced are entitled to an equal treatment. Classification, therefore, is to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. The judgement in the case of Sri. S.V. Singre (supra) was based on a concession made by the State Government in context of repeaters and will have no application to the facts of the case.
(III) From the statistical data that has been made available to us, it is evident that even the scale of conducting such examinations in context of the present class is on a scale not large enough as compared to that of the regular students. What is evident is that in Page 6 of 7 Downloaded on : Wed Sep 08 13:07:05 IST 2021 C/WPPIL/82/2021 ORDER DATED: 13/07/2021 one subject 1,54,679 students and for 3 subjects 1,39,325 students are to take such examinations. As far as the students appearing in one subject is concerned, the examination is only for one day. Similarly, only 91,969 will appear for two subjects. For all the 7 subjects, only 35,667 students will appear. The examination schedule and the number therefore when appreciated in context of the arrangements made indicates that it will be conducted at 643 centers and over 28,291 classrooms after following a detailed SOP in respect of Covid protocol.
(IV) Considering the examination schedule and the arrangements that the State Government has made of ensuring the Covid protocol and taking into consideration that the students are spread over a schedule commencing from 15.07.2021 to 28.07.2021 and when only a maximum number of 35,667 students are to appear in all subjects, there is no reason to believe that the students undertaking examinations in physical mode namely the repeater, private and isolated students have any reason to fear of the Covid pandemic which even otherwise has temporarily ebbed.
7. In view of the above, we find no reason to entertain the present petitions and the same are accordingly dismissed.
(VIKRAM NATH, CJ) (BIREN VAISHNAV, J) DIVYA Page 7 of 7 Downloaded on : Wed Sep 08 13:07:05 IST 2021